Government decisions have a direct impact on the lives of its citizens. Hence, citizens are allowed to seek legal action whenever they feel that the decision-making process is not fair and democratic. Democracy refers to active participation of citizens in the decision-making process, while fairness is about how fair the decision-making process is, both in terms of transparency and the procedures used. Fairness has two connotations, but of great importance in administrative law is procedural fairness.
Procedural fairness is concerned about fairness with regard to the decision-making process. Substantive fairness, on the other hand, is concerned about the outcome in terms of whether the decision made is in good faith. As a government agency, it is a requirement that our decision-making process does not only involve citizens, but is also conducted in a fair manner.
We have had several instances in the past where citizens have taken us to court because of lack of fairness in our decisions. Therefore, I have developed this brief manual to guide employees on issues pertaining to administrative law. The manual addresses four critical concepts of procedural fairness, namely; discretion, credibility, bias and the extent of duty to give reasons.
Discretion is about making choices, depending on the individual’s interpretation of circumstances. For example, your boss can give you work to do, but you are at discretion to decide how you will do it so long as you meet the set targets. Similarly, we are always at discretion to choose our friends, what to wear, places to visit, etc.
Public officers make decisions on a day-to-day basis. The difference between administrative decisions and personal decisions is that administrative decisions have to be made within jurisdictive boundaries. Therefore, the law determines how much discretion a government officer has when making the decision in question.
For instance, using the word “shall” in the law means that a government officer has no discretion while “may” gives the officer some discretion. If the law states that “the Minister may grant application…,” then the Minister can as well choose not to grant the application if he/she feels that it is in the public’s best interest.
But does discretion lead to procedural fairness? Most government officials have been sued because of unfairness in their discretionary decisions. However, it is never easy to assess discretionary decisions. Prior to Baker v. Canada (Minister of Citizenship and Immigration) case, the courts understood discretionary decisions simply to mean “reasonable” decisions. The court would rule in the government’s favor without considering the decision-making process if the decision made was “reasonable.”
This approach, however, only looks at substantive fairness issues at the expense of procedural fairness. When determining Baker v. Canada, the Federal Court of Appeal judges introduced a criterion for assessing discretionary decisions, i.e. “pragmatic and functional” approach, which considers: the decision maker’s expertise; the nature of the decision and; the language in the law. This approach takes into consideration such important issues as legitimate expectations and fettering, which are important in procedural fairness.
Credibility refers to how trustworthy and believable a person is. As public officers, we are often bombarded with information from different sources, hence the need to determine the credibility of such information before factoring them in the decision-making process. For instance, if a person appears before a public officer in charge of immigration to seek federal refugee recognition, then the officer will have to subject the person to some sort of interview as a way of assessing the person’s credibility before granting him/her the recognition.
So far you must have realized that credibility goes hand in hand with discretion. In the example above, the officer will exercise discretion, but must assess the credibility of the applicant to be able to provide reasons for either granting or denying the recognition.
When assessing credibility, government officials must: state it in advance that credibility is being assessed; grant the victim an oral hearing; give the victim a chance to address concerns about his/her credibility; believe evidence that passes the test of truth; be moderate with interrogations targeted towards the search for inconsistencies and; give reasons when the victim is found not to be credible.
But does credibility lead to procedural fairness? In my opinion, credibility is based on personal judgment and can be more subjective than objective. The burden of proof lies with the person whose credibility is being assessed and issues such as personal differences, power, race, skin color or class can easily mar the process. Credibility assessment can only be fair if it does not overstep on human rights.
In Khan v. University of Ottawa, the court noted that the process used failed to fairly assess Ms. Khan’s credibility by not allowing her an oral hearing. However, the court referred the case back to the examination committee instead of ordering the law school to allow her to write another exam.
While this judgment might lead to procedural fairness, it is very unlikely that it would lead to substantive fairness. The committee has already prejudged Ms. Khan and listening to her oral submission might not change much. Nevertheless, assessing credibility is not as easy thing because it depends on how convincing the person is.
Bias can be considered the opposite of credibility. While credibility focuses on “you evaluating others”, bias is more of “others evaluating you”. As a public officer, it is expected that your decisions are free from prejudice. It is wrong to make decisions based on prejudgment. For example, a suspect can never be labeled “criminal” unless he/she is subjected to a court process and a ruling made based on the facts presented. In this regard, the notion of bias comes in when someone feels that the decision-making process is marred with partiality.
The notion of bias is important in achieving procedural fairness. Bias has two concepts, namely: impartiality, which is concerned about the decision maker’s state of mind and; independence, which focuses on the relationship between government agencies and the government. In this regard, procedural fairness is only achieved if the process is free from influence by the government and the decision maker is impartial.
While it is easy to raise concerns about credibility, it is never easy to handle biasness, given that the accused usually has powers over the decision-making process than the person accusing. For instance, a job applicant may notice nepotism in the recruitment process, but raising the issue would make the applicant look snoopy while keeping quiet would only make the applicant uncomfortable.
In the event that the applicant decides to sue the recruitment committee and the court rules that the process be repeated, the committee is most likely to victimize the applicant, hence prejudice.
In defining bias in Zundel v. Citron, the court gave room for “objectively justifiable” bias arguing that fairness is not absolute. This can, however, be misused in the decision-making process, especially in cases where the decision maker has some discretional powers. Again, evaluating the court’s definition raises issues as to whether or not “disposition” or “inclination” amounts to bias.
According to the court’s definition of bias, “disposition” or “inclination” only amounts to “objectively justifiable” bias, which is acceptable in administrative law. However, some layers may argue that an inclined person already has a biased understanding of the issue. But, which is worse? Having an expert in the decision-making process or someone who does not understand the issue?
The Extent of the Duty to Give Reasons
In the introduction section, I mentioned that a government’s decision-making process is only considered fair if it is transparent and follows the right procedures. In this regard, citizens have a right to know the reasons supporting the various decisions made by government officials. It is only when citizens have access to the reasons that they are able to judge whether or not the decision arrived at is fair. In this regard, the duty to give reasons as used in administrative law refers to written reasons.
However, granting this right can be tricky, especially where the reasons are considered highly confidential. Hence, the need to define the boundaries within which the duty to give reasons is applicable. In determining Baker v. Canada (Minister of Citizenship and Immigration) case, the court noted that the duty to give reasons does not apply in all circumstances.
Consequently, the court came up with two exemptions, namely: where the person has right to petition and; where the decision is likely to significantly affect the person concerned. Hence, government officials are at discretion to give written reasons only where the decision being made falls within this criterion.